1. The case originated in an application (no.
9190/03) against the Republic of Moldova lodged with the Court under
Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by a Moldovan national,
Mr Constantin Becciev (“the applicant”), on 7 March 2003.

2. The applicant was represented by Mr Vitalie
Nagacevschi and Mr Victor Constantinov, lawyers practising in Chişinău.
The Moldovan Government (“the Government”) were represented by their
Agent, Mr Vitalie Pârlog.

3. The applicant complained about his detention
on remand and about various alleged violations in that connection: violations
of Article 3 (conditions of detention); Article 5 § 3 (insufficient
reasons given by the courts for the detention on remand); and Article
5 § 4 (refusal to hear a witness).

4. The application was allocated to the Fourth
Section of the Court (Rule 52 § 1 of the Rules of Court). Within that
Section, the Chamber that would consider the case (Article 27 § 1 of
the Convention) was constituted as provided in Rule 26 § 1.

5. On 1 November 2004 the Court changed the composition
of its Sections (Rule 25 § 1). This case was assigned to the newly
composed Fourth Section (Rule 52 § 1).

6. By a decision of 5 April 2005, the Court declared
the application partly admissible.

7. The applicant and the Government each filed
observations on the merits (Rule 59 § 1), the Chamber having decided,
after consulting the parties, that no hearing on the merits was required
(Rule 59 § 3 in fine).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

8. The applicant, Mr Constantin Becciev, is a
Moldovan national who was born in 1955 and lives in Chişinău. He is
the head of the Chişinău Public Water Company.

1. Background

9. On 21 February 2003 he was arrested by the Department
of Criminal Investigation of the Ministry of Internal Affairs on charges
of embezzlement.

10. On 23 February 2003 a criminal investigator
in charge of the case applied to the Centru District Court for an order
to remand the applicant in custody for thirty days. The reasons invoked
by the investigator were the following:

“Becciev committed a serious offence, he might abscond from the investigation
authorities and from the court, he might influence the participants
in the investigation and the discovery of the truth and the sanction
provided by law for the offence is imprisonment for more than one year”.

2. Hearings regarding the detention on
remand before the Centru District Court and before the Chişinău Regional
Court

11. On 24 February 2003, following a hearing where
the applicant and his lawyers were present, the Centru District Court
issued an order for his remand in custody for twenty-five days. The
court’s reasoning was the following:

“the suspect has reached the age at which he may be criminally prosecuted,
he is suspected of having committed a serious offence, he might abscond
from the investigation authorities and from the court and he might influence
the witnesses and the discovery of the truth”.

12. The applicant’s lawyers lodged an appeal
against the order, arguing inter alia,that the decision to remand the applicant was groundless.
They stated that the proceedings had been pending since 2001 and that
during that time the applicant had never obstructed in any way the investigation.
He had travelled abroad on many occasions and returned every time and
he had always behaved irreproachably as regards the investigation. He
was a well-known and respectable man and he had a family and a house
and many reputable people were prepared to act as surety if he were
to be released in accordance with the provisions of the Code of Criminal
Procedure. The Chişinău Municipal Council and the leader of a parliamentary
opposition party also declared their intention to act as surety for
him in order to secure his release. The lawyers also stated that the
applicant was ready to give up his passport. They finally alleged that
the applicant’s detention was politically motivated and had been implemented
to coincide with the approaching local elections.

13. They requested that the applicant be present
in person at the hearing, but the request was dismissed, together with
the applicant’s appeal following a hearing on 4 March 2003 by the
Chişinău Regional Court. In dismissing the appeal, the court did not
rely on any other arguments than those relied upon by the first instance
court.

3. The applicant’s conditions of detention
between 23 February 2003 and 1 April 2003

14. Meanwhile the applicant was detained in the
remand centre of the Ministry of Internal Affairs in Chişinău.

(a) The applicant’s submissions

15. According to the applicant, the conditions
of detention were inhuman and degrading. The cell was damp, the window
was closed by metal plates and the electric light was always on. The
cells were not provided with ventilation. As a result of the damp, the
inmates’ clothes were wet and rotted on their bodies. Instead of a
toilet, there was a bucket which was not separated from the rest of
the cell. Instead of beds, there were wooden shelves with no mattresses,
pillows, blankets or bed linen. The inmates were denied the opportunity
of a daily walk. There was no means of maintaining hygiene in the cell.
There was no shower and the applicant was constantly running the risk
of getting infected with tuberculosis, skin infections and other infectious
diseases.

16. The applicant submits that the food was inedible.
The daily amount spent by the State for a detainee’s food was 3.5
Moldovan Lei (MDL) (0.23 euros (EUR)). Because of the State’s incapacity
to provide adequate food, the prisoners were exceptionally allowed to
receive food from their families. However, in the applicant’s case
the legal provisions were applied very strictly and he was not allowed
to receive parcels from his family more than once a month.

(b) The Government’s submissions

17. The applicant was detained in cell no. 6 of
the remand centre of the Ministry of Internal Affairs. The surface of
the cell was 12 square metres and usually four to five persons were
detained in the cell.

18. There was a window in the cell and daylight
was available. The ventilation of the cells was effected by the common
ventilation system. The cells were provided with water closets. In 2002
the premises of the remand centre were refurbished and the toilets were
separated from the rest of the cell by a wall in order to ensure the
privacy of the detainees. The cells were permanently provided with tap
water, and accordingly the inmates enjoyed an adequate level of hygiene.
The cells were frequently disinfected and the detainees had access to
a shower once a week.

19. During his detention the applicant had the
possibility to play chess, draughts and dominos and to read books and
magazines. He also had the possibility to pray and to use religious
literature.

20. In their initial observations on the admissibility
and merits of September 2004, the Government did not deny the applicant’s
allegation that there was no exercise yard in the prison and that accordingly
the detainees did not enjoy outdoor exercise. However, in their supplementary
observations of June 2005 the Government argued that the applicant enjoyed
walks for one hour per day, at any time of the day convenient to him.

21. The detainees were provided with free food
in accordance with the norms provided by the Government and the quality
of food was satisfactory. The prison was provided on a daily basis with
bread, vegetable oil, vegetables, tea and sugar. Because of insufficient
funding, the detainees were not served meat and fish; however they were
given an increased quantity of cereals and lipids. Moreover, the detainees,
including the applicant, had the right to receive food from their families.

22. The applicant had access to medical assistance.

4. Hearings regarding the first extension
of remand before the Centru District Court and before the Chişinău
Regional Court

23. On 18 March 2003 the Centru District Court
granted the investigator’s request to prolong the applicant’s detention
on remand for another thirty days. The court’s reasoning was exactly
the same as that relied upon when the detention on remand was first
ordered. The applicant appealed against that decision but the appeal
was dismissed by the Chişinău Regional Court on 21 March 2003 at a hearing
where the applicant was not allowed to be present, although his lawyers
were present. No new arguments were given by the Chişinău Regional
Court.

5. The applicant’s transfer to another
detention facility

24. On 1 April 2003 the applicant was transferred
from the remand centre of the Ministry of Internal Affairs to the remand
centre of the Ministry of Justice.

6. Hearings regarding the second extension
of remand before the Centru District Court and before the Chişinău
Regional Court and the interview of C.B.

25. On 17 April 2003 the Centru District Court
again prolonged the applicant’s detention on remand for thirty days.
No new reasons were given. The applicant appealed against this decision.

26. On 18 April 2003 the independent weekly newspaper
“Timpul” published an interview with the police colonel “C.B.”
who had worked as a Superior Inspector of the Cross-Border Financial
Crimes Directorate within the Inspectorate General of the Ministry of
Internal Affairs and who had been in charge of the applicant’s case
for a long time and had arrested the applicant on 21 February 2003.
He stated inter alia that:

“I declare with full responsibility that the Becciev file has been
fabricated, on the orders of the heads of the Ministry of Internal Affairs,
for political reasons. The real target of this fabrication is the Mayor
Serafim Urecheanu and his team...

Mr Becciev has provided the investigation organs with all the requested
information, he appeared personally before the investigators every time
he was asked to, and he never gave any reason to believe that he intended
to abscond. As a matter of fact, he travelled abroad on many occasions
after the investigation started and returned every time. No other suspects,
even those who are clearly involved, have ever been arrested...

The file does not contain and has never contained any evidence that
would prove Becciev’s guilt... Many, if not all the witness statements
from the file have been falsified or obtained through pressure and blackmail.
Even the graphological examination did not prove that it was Becciev’s
signature on the documents, on the basis of which the criminal investigation
commenced.... The heads of the Ministry of Internal Affairs have put
great pressure on me to obtain favourable conclusions from the graphological
experts...

I can say that the Vice-Ministers U. and B. have put pressure on the
President of the Centru District Court. Judge D.V. told me personally
that he has been called by the Vice-Minister B. – his former University
friend. In my turn, I told him that the file was being supervised by
the President of the country, and that a decision other than one of
detention could cost any judge his or her job...

In May 2002 I was invited to see the Vice-Minister A.U., who asked
me if I could find some evidence to compromise the Mayor.... In September
he called on me again, this time to tell me that I had been included
in the investigating group for the Becciev case. He also told me that
my target should be the Municipality of Chişinău and the arrest of
Becciev and of the Vice-Mayor Anatol Ţurcan... And that I would be
promoted if I succeeded....

I have been asked explicitly to obtain a confession by any means,
because ‘there was no time to waste, since the elections were approaching’.
Then I understood the gravity of the situation....

The decision that I could no longer work with them came to me when
they started to pressurise me and to blame me when I could not obtain
the necessary confession....

Nobody can or will demonstrate that Becciev was a part of that deal...
The investigators know very well who was involved.... It was V.P., one
of the owners of Bank “M.”, former member of the Chişinău Municipal
Council on behalf of the Communist Party and a sponsor of this party
in the last elections...

They thought that I came too close to the truth and got rid of me.”

27. On 25 April 2003 the Chişinău Regional Court
held a hearing and dismissed the applicant’s appeal, relying on exactly
the same reasons as before. The applicant’s request to be present
was denied; however his lawyers were present. The court also denied
the applicant’s request to see all investigation documents and to
have “C.B.” examined as a witness. It did not give any reasons for
this refusal.

7. Subsequent developments

28. On 12 June 2003 the investigators concluded
their work on the case and the file was sent to the competent court.

29. On 27 July 2003 the first hearing in the criminal
proceedings took place before the Râşcani District Court.

30. The applicant was released from detention
on 12 August 2003. The criminal proceedings against him are still pending.

II. RELEVANT NON-CONVENTION MATERIAL

1. Acts of the European Committee for
the prevention of torture and inhuman or degrading treatment or punishment
(CPT)

31. The relevant parts of the CPT’s report concerning
the visit to Moldova between 11 and 21 October 1998 read as follows:

“55. In Chişinău, the remand centre had 23 cells; with an official
capacity of 79 places, it was accommodating 40 remand prisoners and
20 administrative detainees at the time of the visit. As in Bălţi,
the delegation met in that establishment minors who had been sharing
cells with adults during prolonged periods.

The size of the cells varied approximately from 7 m² to 15 m². At
the time of the visit, the small cells held up to two detainees, and
the larger cells up to four or five. Such a rate of occupancy may be
considered as approaching tolerable norms. The cells were equipped with
a wooden platform approximately two metres long, generally covering
the whole width of the cell, and an Asian toilet. Like the other establishments
visited, the detainees were given neither mattresses nor blankets. In
addition, ventilation in the cells was mediocre, access to natural light
virtually non-existent and artificial lighting, above the door, was
permanently on; this disturbed the detainees at night.

The delegation noted that the cell block had a shower area; however,
the detainees claimed they did not know that it existed. There were
no facilities for outdoor exercise.

56. Depriving persons of their liberty brings with it the responsibility
to detain them under conditions which are consistent with the inherent
dignity of the human person. The facts found in the course of the CPT’s
visit show that the Moldovan authorities have failed to fulfil that
responsibility with regard to persons detained in the district police
stations and remand centres visited. Moreover, information available
to the CPT suggests that the situation is not any different in other
police establishments in Moldova. In many ways, the conditions prevailing
in the district police stations and the remand centre visited amounted
to inhuman and degrading treatment and, in addition, constituted a significant
risk to the health of persons detained.”

32. The relevant parts of the CPT’s report concerning
the visit to Moldova between 10 and 22 June 2001 read as follows:

“56. Regarding the remand centres visited throughout Moldova, the delegation
made approximately similar findings, with minor exceptions, on the disastrous
and unwholesome material conditions. In order to avoid a detailed description,
please see for further information paragraphs 53-55 of the report on
the visit of 1998.

At the remand centre of Chisinau these conditions were aggravated
by severe overcrowding. At the time of the visit, 248 of detainees were
kept in a facility with a maximum capacity of 80 detainees, and thus
9 persons had to live in a 7m² cell, while 11 to 14 persons had to
stay in cells of 10 to 15m².

57. In the visited remand centre, the delegation collected numerous complaints
on the quantity of food. It basically included: a cup of tea without
sugar and a slice of bread in the morning, cereal porridge in the afternoon
and a cup of warm water in the evening. In some places the food was
distributed only once a day and included a soup and a slice of bread.”

2. Relevant domestic law

33. The relevant provisions of the Code of Criminal
Procedure read as follows:

Article 73 § 1

“If there are serious grounds for believing that an accused will abscond,
obstruct the establishment of the truth during the criminal proceedings
or re-offend ..., one of the following preventive measures may be imposed:
a written undertaking not to leave the district, bail, a guarantee by
a public organisation or detention on remand.

...

When deciding on the necessity to impose a preventive measure, as
well as on the choice of the preventive measure, ... the court shall
pay attention, besides the circumstances indicated in the first paragraph
of this article, to such circumstances as the seriousness of the imputed
offence, the personality of the accused, his or her occupation, age,
state of health, family status and other circumstances.

Article 76. Personal Guarantee

The personal guarantee consists of a written commitment made by trustworthy
persons in order to guarantee the appropriate behaviour of the accused
and his appearance before the investigating organ, prosecutor or court,
when need be. The number of guarantors cannot be less than two.

At the moment of making the written commitment, the guarantor shall
be acquainted with the merits of the case in relation to which the detention
was ordered and shall be warned about his liability in case the accused
should breach the rules. In this case, the court may fine each guarantor
one hundred times the minimum wage, in accordance with the provisions
of Article 294 of the present Code.

Article 78 § 1

Detention on remand may be imposed ... in cases concerning offences
in respect of which the law provides for custodial sentences for a period
exceeding one year. In exceptional cases, where the court has gathered
evidence that an accused committed the acts mentioned in Article 73
§ 1, detention on remand may be imposed ... in cases concerning offences
in respect of which the law provides for custodial sentences for a period
of less than one year.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3
OF THE CONVENTION

34. The
applicant complained under Article 3 of the Convention about the conditions
of detention in the Remand Centre of the Ministry of Internal Affairs
between 23 February 2003 and 1 April 2003. Article 3 reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment
or punishment.”

A. Submissions of the parties

35. The
applicant argued that in view of the inadequacy of the sanitary conditions,
ventilation, access to daylight, heating, opportunities for recreation
and food, the conditions of detention in the remand centre amounted
to inhuman and degrading treatment. He submitted that his allegations
were confirmed by the CPT in its reports of 1998 and 2001 (see paragraphs
31 and 32 above).

36. Referring
to their submissions on the facts, the Government considered that the
conditions of detention did not amount to inhuman and degrading treatment.
They submitted that the findings of the CPT in their 1998 and 2001 reports
were not relevant because the situation had since improved. In particular,
in the summer of 2002 the prison had been refurbished.

B. The Court’s assessment

1. General Principles

37. Article 3 of the Convention enshrines one
of the most fundamental values of democratic society. It prohibits in
absolute terms torture or inhuman or degrading treatment or punishment,
irrespective of the circumstances and the victim’s behaviour (see,
for example, Labita v. Italy [GC], no 26772/95, § 119, ECHR 2000-IV).

38. To fall within the scope of Article 3, ill-treatment
must attain a minimum level of severity. The assessment of this minimum
is relative; it depends on all the circumstances of the case, such as
the duration of the treatment, its physical and mental effects and,
in some cases, the sex, age and state of health of the victim (see,
among other authorities, Ireland v. the United Kingdom, judgment of 18 January 1978,
Series A no. 25, p. 65, § 162).

39. The Court has considered treatment to be “inhuman”
when, inter
alia, it was premeditated, was applied for hours at a stretch
and caused either actual bodily injury or intense physical and mental
suffering. It has deemed treatment to be “degrading” when it was
such as to arouse in the victims feelings of fear, anguish and inferiority
capable of humiliating and debasing them (see, for example, Kudla v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI). In
considering whether a particular form of treatment is “degrading”
within the meaning of Article 3, the Court will have regard to whether
its object is to humiliate and debase the person concerned and whether,
as far as the consequences are concerned, it adversely affected his
or her personality in a manner incompatible with Article 3. However,
the absence of any such purpose cannot conclusively rule out a finding
of a violation of Article 3 (see, for example, Raninen v. Finland, judgment of 16 December 1997, Reports of Judgments and Decisions, 1997-VIII, pp. 2821-22,
§ 55, and Peers v. Greece, no. 28524/95, § 74, ECHR 2001-III).

40. The State must ensure that a person is detained
in conditions which are compatible with respect for his human dignity,
that the manner and method of the execution of the measure do not subject
him to distress or hardship of an intensity exceeding the unavoidable
level of suffering inherent in detention and that, given the practical
demands of imprisonment, his health and well-being are adequately secured
by, among other things, providing him with the requisite medical assistance
(see, Kudla
v. Poland cited above, § 94). When assessing conditions of detention,
account has to be taken of the cumulative effects of those conditions
and the duration of the detention (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II and Kalashnikov
v. Russia, no. 47095/99, § 102, ECHR 2002-VI).

2. Application of the above principles
in the present case

41. The applicant complains about the conditions
in which he was detained between 23 February 2003 and 1 April 2003 in
the Chişinău remand centre of the Ministry of Internal Affairs. The
findings of the CPT, in particular in their 1998 and 2001 reports (see
paragraphs 31 and 32 above), provide at least to some degree a reliable
basis for the assessment of the conditions in which he was imprisoned
(see, for another example of the Court’s taking into account the reports
of the CPT, Kehayov v. Bulgaria, no. 41035/98, § 66, 18 January 2005). While
the Court does not discount that some improvements may have occurred,
it notes that the Government have not shown that significant improvements
have taken place. Moreover, they have not pointed to any increase in
public funding of the prison system or changes in prison policy.

42. It appears from both the applicant’s and
the Government’s submissions that the detainees were not provided
with sufficient food. This is also consistent with the findings of the
CPT (see paragraph 32 above).

43. The Court finds that the Government’s submissions
in respect of the issue of outdoor exercise are somewhat inconsistent.
In their observations of September 2002 in another case concerning the
conditions of detention at the same prison (Duca v. Moldova, 1579/02) but at a different time, the Government
admitted that because of lack of space, the prisoners were not provided
with the possibility of outdoor exercise. In their observations of September
2004 in the present case, the Government did not deny the applicant’s
allegations about the lack of outdoor exercise. However, in their final
observations of June 2005 they submitted that the applicant enjoyed
outdoor exercise for one hour per day, at any time of the day convenient
to him (see paragraph 20 above). This was denied by the applicant.

44. Having regard to the above inconsistency and
to the findings of the CPT (see paragraph 31 above) the Court concludes
that the applicant was not provided with any outdoor exercise since
there were no facilities to do so.

45. It is also to be noted that the Government
did not contest the presence of metal shutters on the cell’s window,
which kept out natural light. This is also consistent with the findings
of the CPT (see paragraph 31 above).

46. Nor did the Government deny the fact that
the electric light was always kept on in the cell and that detainees
were forced to sleep on wooden platforms without any bedclothes or mattress
being provided.

47. Having regard to the harsh conditions in the
cell, the lack of outdoor exercise, the inadequate provision of food
and the fact that the applicant was detained in these conditions for
thirty-seven days, the Court considers that the hardship he endured
went beyond the unavoidable level inherent in detention and reached
the threshold of severity contrary to Article 3 of the Convention.

48. The Court therefore finds that the conditions
of detention of the applicant amounted to a violation of Article 3 of
the Convention.

II. ALLEGED VIOLATION OF ARTICLE
5 § 3 OF THE CONVENTION

49. The applicant further complained that his
detention on remand was not based on “relevant and sufficient” reasons.
In particular he referred to the decisions of the domestic courts of
24 February 2003, 4 March 2003, 18 March 2003 and 21 March 2003.

50. The relevant part of Article 5 § 3 reads:

“Everyone arrested or detained in accordance with the provisions of
paragraph 1 (c) of this Article shall be ... entitled to trial within
a reasonable time or to release pending trial. Release may be conditioned
by guarantees to appear for trial.”

A. Submissions of the parties

51. The applicant submitted that the reasons invoked
by the Government were different from those given by the domestic courts
in their judgments and should therefore be disregarded. The courts did
not give any reasons in support of their belief that he might flee or
abscond or that he might influence the other participants in the proceedings.
The only reasoned argument invoked by the courts was that he was suspected
of having committed a serious offence. However, this reason was not
enough to justify his detention.

52. The Government maintained that, contrary to
the applicant’s claim, the proceedings against him had been pending
since 6 January 2003, not 2001. They submitted that the applicant’s
detention was necessary because he was suspected of having committed
a serious offence; the facts surrounding the offence were not entirely
clear and proved to be very complex; the applicant was suspected of
having played a very important role and accordingly his possible flight
was of serious concern; there was a possibility that the applicant possessed
large sums of money abroad which would have facilitated his flight;
the risk of flight was not minimised by his family ties in Chişinău.
It was possible that there were reasons in favour of his detention which
were not expressly invoked by the courts in their judgments in order
not to prejudice the investigation.

B. The Court’s assessment

1. General Principles

53. A person charged with an offence must always
be released pending trial unless the State can show that there are “relevant
and sufficient” reasons to justify the continued detention (Yağcı and Sargın v. Turkey, judgment of 8 June 1995, Series A
no. 319-A, § 52).

54. Article 5 § 3 of the Convention cannot be
seen as authorising pre-trial detention unconditionally provided that
it lasts no longer than a certain period. Justification for any period
of detention, no matter how short, must be convincingly demonstrated
by the authorities (Belchev v. Bulgaria, no. 39270/98, § 82, 8 April 2004).

55. A further function of a
reasoned decision is to demonstrate to the parties that they have been
heard. Moreover, a reasoned decision affords a party the possibility
to appeal against it, as well as the possibility of having the decision
reviewed by an appellate body. It is only by giving a reasoned decision
that there can be public scrutiny of the administration of justice (Suominen v. Finland,no. 37801/97, § 37, 1 July 2003).

56. Arguments for and against release must not
be “general and abstract” (see Clooth v. Belgium, judgment of 12 December 1991, Series A no.
225, § 44).

57. The Convention case-law has developed four
basic acceptable reasons for detaining a person before judgment when
that person is suspected of having committed an offence: the risk that
the accused would fail to appear for trial (see Stögmüller v. Austria, judgment of 10 November 1969, Series
A no. 9, § 15); the risk that the accused, if released, would take action
to prejudice the administration of justice (see Wemhoff, cited above, § 14) or commit further offences (see Matznetter v.
Austria, judgment of 10 November 1969, Series A no. 10, § 9)
or cause public disorder (see Letellier v. France, judgment of 26 June 1991, Series A no. 207,
§ 51).

58. The danger of an accused’s absconding cannot
be gauged solely on the basis of the severity of the sentence risked.
It must be assessed with reference to a number of other relevant factors
which may either confirm the existence of a danger of absconding or
make it appear so slight that it cannot justify detention pending trial
(Yağcı
and Sargın v. Turkey, cited above, § 52). The risk of absconding
has to be assessed in light of the factors relating to the person’s
character, his morals, home, occupation, assets, family ties and all
kinds of links with the country in which he is prosecuted. The expectation
of heavy sentence and the weight of evidence may be relevant but is
not as such decisive and the possibility of obtaining guarantees may
have to be used to offset any risk (Neumeister v. Austria, judgment of 27 June 1968, Series A no.
8, § 10).

59. The danger of the accused’s hindering the
proper conduct of the proceedings cannot be relied upon in abstracto, it has to be supported by factual evidence (Trzaska v. Poland,
no. 25792/94, § 65, 11 July 2000).

2. Application of the above principles
in the present case

60. The Court notes
that in the present case the judicial authorities relied on the serious
nature of the offence with which the applicant had been charged, the
risk of his absconding and the need to ensure the proper conduct of
the proceedings. They repeated those grounds in all their decisions
about which the applicant complained.

61. It is noted that the applicant contested the
grounds for his detention before the Moldovan courts. He referred to
the fact that the proceedings had been pending since 2001 and that he
had not obstructed in any way the investigation. He had travelled abroad
on many occasions since the opening of the proceedings against him and
had always come back and his conduct regarding the investigation had
always been considered to be irreproachable. He had a family and many
reputable persons, including the leader of a parliamentary opposition
party and the Chişinău Municipal Council, were prepared to offer guarantees
to secure his release in accordance with the provisions of the Code
of Criminal Procedure. The applicant was also willing to give up his
passport as an assurance that he would not leave the country.

62. The domestic courts gave no consideration
to any of these arguments, apparently treating them as irrelevant to
the question of the lawfulness of the applicant’s remand. Nor did
the courts make any record of the arguments presented by the applicant
and limited themselves to repeating in their decisions, in an abstract
and stereotyped way, the formal grounds for detention provided by law
without any attempt to show how they applied to the applicant’s case.
Further, they did not give any assessment to such factors as the applicant’s
good character, his lack of criminal record, family ties and links (home,
occupation, assets) with his country. Finally, they gave no consideration
to the guarantees offered by third parties in the applicant’s favour.

63. In their observations of September 2004 the
Government made an attempt to justify the need for the applicant’s
detention by invoking new reasons which were not relied upon by the
domestic courts (see paragraph 52 above). The Court reiterates that
it is not its task to take the place of the national authorities who
ruled on the applicant’s detention. It falls to them to examine all
the facts arguing for or against detention and to set them out in their
decisions. Accordingly, the Government’s new reasons, which were raised
for the first time in the proceedings before the Court, cannot be taken
into account by the Court (Nikolov v. Bulgaria,no. 38884/97, § 74 et seq., 30 January 2003).

64. In the light of
the above, the Court considers that the reasons relied upon by the Centru
District Court and by the Chişinău Regional Court, in their decisions
concerning the applicant’s detention on remand and its prolongation,
were not “relevant and sufficient” and that, accordingly, there
has been a violation of Article 5 § 3 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE
5 § 4 OF THE CONVENTION

65. The applicant originally complained under
Article 6 § 3 that the Chişinău Regional Court refused to hear his
former investigator as a witness. The Court considered that it was more
appropriate to examine this complaint under Article 5 § 4 which provides
as follows:

“Everyone who is deprived of his liberty by arrest or detention
shall be entitled to take proceedings by which the lawfulness of his
detention shall be decided speedily by a court and his release ordered
if the detention is not lawful.”

A. Submissions of the parties

66. The applicant submitted that C.B.’s testimony
was required in order to combat the prosecutor’s arguments in favour
of his detention. The testimony was not intended in any way to influence
the examination of the merits of the case and it was relevant exclusively
for the proceedings concerning the applicant’s remand. Besides, had
the Chişinău Regional Court considered that C.B.’s testimony was
only relevant for the merits of the case, it should have stated so in
its judgment. However, the refusal was not accompanied by any reasoning.

67. The Government submitted that the examination
of the necessity to apply measures of detention on remand does not include
an examination of the merits of the criminal case and of the evidence
that relates to the merits of the case. The applicant had the possibility
to request the hearing of any witness during the proceedings concerning
the merits of the case and not during those regarding his detention
on remand. Accordingly, the refusal to hear C.B. as a witness was perfectly
legal. Moreover, in accordance with Article 73 of the Code of Criminal
Procedure, the courts have to examine the gravity, in abstracto, of the incriminated facts, the personality of
the accused, his or her occupation, age, state of health, family status
and other circumstances but never declarations made by witnesses and
other evidence.

B. The Court’s assessment

1. General Principles

68. Article 5 § 4 guarantees no right, as such,
to appeal against decisions ordering or extending detention as the above
provision speaks of “proceedings” and not of “appeal”. The intervention
of one organ satisfies Article 5 § 4, on condition that the procedure
followed has a judicial character and gives to the individual concerned
guarantees appropriate to the kind of deprivation of liberty in question
(Jecius
v. Lithuania, no. 34578/97, § 100, ECHR 2000-IX). Nevertheless,
a State which sets up a second level of jurisdiction for the examination
of applications for release from detention must in principle accord
to the detainee the same guarantees on appeal as at first instance (Toth v. Austria
judgment of 12 December 1991, Series A no. 224, p. 23, § 84).

69. Article 5 § 4 does not guarantee a right
to judicial review of such breadth as to empower the court, on all aspects
of the case including questions of pure expediency, to substitute its
own discretion for that of the decision-making authority. The review
should, however, be wide enough to bear on those conditions which are
essential for the “lawful” detention of a person according to Article
5 § 1 (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports
1996-V, § 127).

70. In a case of detention on remand, Article
5 § 1 (c) states that pre-trial detention can be justified only where
there is a reasonable suspicion that the accused person has committed
an offence. The persistence of the reasonable suspicion is a condition sine qua non
for the lawfulness of the continued detention (Labita v. Italy [GC], no. 26772/95, §§ 152-53, ECHR 2000-IV).
The competent court thus has to examine not only compliance with the
procedural requirements set out in domestic law but also the reasonableness
of the suspicion grounding the arrest and the legitimacy of the purpose
pursued by the arrest and the ensuing detention (see Schöps v. Germany, no. 25116/94, § 44, ECHR 2001-I).

71. According to the Court’s case-law, it follows
from the wording of Article 6 – and particularly from the autonomous
meaning to be given to the notion of “criminal charge” – that
this provision has some application to pre-trial proceedings (see Imbrioscia v.
Switzerland, judgment of 24 November 1993, Series A no. 275,
§ 36). It thus follows that, in view of the dramatic impact of deprivation
of liberty on the fundamental rights of the person concerned, proceedings
conducted under Article 5 § 4 of the Convention should in principle
also meet, to the largest extent possible under the circumstances of
an ongoing investigation, the basic requirements of a fair trial (see Schöps v. Germany,
cited above, idem). A court examining an appeal against detention
must thus provide guarantees of a judicial procedure. The proceedings
must be adversarial and must always ensure “equality of arms” between
the parties, the prosecutor and the detained person (see Nikolova v. Bulgaria [GC], no. 31195/96, § 58, ECHR 1999-II.

72. In the case of a person whose detention falls
within the ambit of Article 5 § 1 (c), a hearing is required (see Assenov and
Others v. Bulgaria, judgment of 28 October 1998, Reports 1998-VIII, § 162). Moreover, where there is evidence
which prima
facie appears to have a material bearing on the issue of the
continuing lawfulness of the detention, it is essential, for compliance
with Article 5 § 4, that the domestic courts examine and assess it
(see mutatis
mutandis, Chahal v. the United Kingdom, cited above, §§ 130-131 and Hussain v. the
United Kingdom, judgment of 21 February 1996, Reports 1996-I, § 60).

2. Application of the above principles
in the present case

73. The Court considers that the procedural safeguards
provided for in Article 5 § 4 apply to the proceedings which are the
object of this complaint (see paragraph 68 above).

74. The Court further notes, and the Government
does not dispute, that Colonel C.B. had worked as a member of the police
group investigating the applicant’s case, and had made very serious
allegations to a newspaper to the effect that the charges against the
applicant were groundless and sprang from political corruption. It is
also undisputed that the Chişinău Regional Court refused to hear C.B.
in its remand proceedings against the applicant without giving any reasons.

75. Although it is primarily for the national
courts to assess the admissibility, relevance and weight of evidence
in a case, the Court considers that Colonel C.B.’s statement raises
issues, not only relating to the genuineness of the charges against
the applicant, but also concerning his conduct during the investigation,
which were prima facie relevant to the question whether a reasonable suspicion
existed and that the applicant had committed a criminal offence and
required to be detained on remand. In this respect it is emphasised
that Colonel C.B. was not just an ordinary witness in the case, but
a witness whose testimony had the potential to undermine the entire
legal basis of the arrest and detention of the applicant. As a former
member of the investigating team, the Colonel’s allegations could
not simply be dismissed as untrue and immaterial.

76. In the light of the above, and bearing in
mind the length of the detention faced by the applicant (he was released
from detention on remand more than three and a half months later), the
Court considers that by refusing, without giving any explanation, to
hear C.B. as a witness at the hearing of 25 April 2003, the Chişinău
Regional Court breached the applicant’s rights guaranteed by Article
5 § 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF
THE CONVENTION

77. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention
or the Protocols thereto, and if the internal law of the High Contracting
Party concerned allows only partial reparation to be made, the Court
shall, if necessary, afford just satisfaction to the injured party.”

A. Pecuniary damage

78. The applicant claimed EUR 2,510 for pecuniary
damage suffered as a result of his illegal detention. He claimed that
this amount constituted the net salary which he was unable to earn due
to his illegal detention between 24 February and 7 August 2003 and submitted
a certificate from his employer, confirming his submissions.

79. The Government argued that the applicant was
not entitled to any compensation for pecuniary damage in view of the
fact that his criminal case was still pending before the domestic courts.
They submitted that if the applicant were to be finally acquitted, then
he would be able to claim compensation at national level.

80. The Court recalls that the rule of exhaustion
of domestic remedies provided for by Article 35 § 1 of the Convention
is not applicable in respect of just satisfaction claims made under
Article 41 of the Convention (De Wilde, Ooms and Versyp v. Belgium (Article 50), judgment
of 10 March 1972, Series A no. 14, §§ 15 and 16).

81. The Court considers that there is a certain
causal link between the violation of Articles 5 § 3 and 5 § 4 of the
Convention found and the sum claimed by the applicant to compensate
for his loss of earnings (see Ceský v. the Czech Republic, no. 33644/96, § 91, 6 June 2000; Nikolova v. Bulgaria (no. 2), no. 40896/98, § 94, 30 September 2004).
Deciding on an equitable basis it awards the applicant EUR 1,000.

B. Non-Pecuniary Damage

82. The applicant claimed EUR 17,000 for non-pecuniary
damage, of which EUR 5,000 for the breach of his right not to be detained
in inhuman and degrading conditions, EUR 10,000 for unreasoned detention
and EUR 2,000 for the refusal to hear C.B. as a witness during his remand
proceedings.

83. The applicant submitted that the violations
of his Convention rights caused him feelings of frustration, uncertainty
and anxiety which could not be compensated solely by a finding of a
violation.

84. The Government disagreed with the amount claimed
by the applicant and argued that it was excessive. Referring to the
applicant’s claims in respect of the violation of Article 3 of the
Convention, the Government reiterated their position on the merits and
claimed that the applicant’s conditions of detention did not amount
to inhuman and degrading treatment. As regards the applicant’s claims
in respect of the violation of Articles 5 §§ 3 and 4, the Government
argued that a simple finding of a violation would constitute sufficient
just satisfaction.

85. The Court considers that the applicant must
have been caused a certain amount of stress and anxiety as a result
of the violations of his right to liberty and security under Articles
5 § 3 and 5 § 4 of the Convention, the more so that the case was of
a high-profile nature and was in the focus of the public and the media.
His sufferings must have been considerably intensified by the harsh
conditions of detention from the remand centre where he was detained.

Deciding on an equitable basis, it awards the
applicant the total sum of EUR 4,000 for non-pecuniary damage.

C. Costs and expenses

86. The applicant also claimed EUR 2,165 for the
costs and expenses incurred before the Court. In support of his claims
the applicant sent the Court a copy of his contract with his lawyers
and a copy of the timesheet showing the number of hours spent by each
of his lawyers on the case and an hourly rate of EUR 60-65.

87. The Government did not agree with the amount
claimed, stating that it was excessive. According to them, the amount
claimed by the applicant was too high in the light of the average monthly
wage in Moldova. The Government also contested the number of hours spent
by the applicant’s representatives on the case and stated that since
they were members of the “Lawyers for Human Rights” organisation,
they should have worked for free.

88. The Court recalls that in order for costs
and expenses to be included in an award under Article 41 of the Convention,
it must be established that they were actually and necessarily incurred
and were reasonable as to quantum (see, for example, Amihalachioaie v. Moldova, no. 60115/00, § 47, ECHR 2004-...).

89. In the present case, regard being had to the
itemised list submitted by the applicant, the above criteria and the
complexity of the case, the Court awards the applicant EUR 1,200.

D. Default interest

90. The Court considers it appropriate that the
default interest should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT

1. Holds unanimously that there has been a violation of Article 3
of the Convention;

2. Holds unanimously that there has been a violation of Article 5
§ 3 of the Convention;

3. Holds by six votes to 1 that there has been a violation of
Article 5 § 4 of the Convention;

4. Holds unanimously

(a) that the respondent State is to pay
the applicant, within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2 of the Convention, EUR
1,000 (one thousand euros) in respect of pecuniary damage; EUR 4,000
(four thousand euros) in respect of non-pecuniary damage, and EUR 1,200
(one thousand two hundred euros) in respect of costs and expenses, to
be converted into the national currency of the respondent State at the
rate applicable at the date of settlement, plus any tax that may be
chargeable;

(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the
above amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;

5. Dismisses unanimously the remainder of the applicant’s claim
for just satisfaction.

Done in English, and notified in writing
on 4 October 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.

Michael O’Boyle Nicolas Bratza
Registrar President

In accordance with Article 45 § 2 of
the Convention and Rule 74 § 2 of the Rules of Court, the partly dissenting
opinion of Mr Pavlovschi is annexed to this judgment.

N.B.

M.O’B.

PARTLY DISSENTING OPINION OF JUDGE PAVLOVSCHI
IN THE CASE OF BECCIEV AGAINST MOLDOVA

On 13 September 2005 the Fourth Section, having
examined the case of Becciev against Moldova, found a violation of Article
3, Article 5 § 3 and Article 5 § 4 of the Convention.

I fully agree with my fellow judges as far as
the violation of Article 3 and Article 5 § 3 is concerned.

At the same time, with all due respect to my
learned colleagues, it is difficult for me to subscribe to their finding
of a violation of Article 5 § 4 in the present case.

Let me express some reasons clarifying my position
concerning the issue at stake.

First of all, and this is of critical importance
so I therefore find it necessary to mention it, neither the applicant
nor his representatives have ever alleged any violation under Article
5 § 4 of the Convention.

Let me reproduce directly the relevant part
of their complaint.

On 15 May 2003 the applicant’s representatives
sent the Court a letter stating their intention to supplement their
initial complaint introduced on 6 March 2003 with, inter alia, the following allegation, and I quote:

“There was a violation of Mr. Becciev’s
rights provided for by Art. 6 paragraph 3 litera (d) of the Convention
- the court refused to summon and hear the witness for the defence who
could adduce the arguments in favour of the applicant’s guiltlessness”

In the admissibility decision delivered on 5
April 2005 this part of the complaint was transformed into the following
formula:

“The applicant complains under Article 5 §
4 that the Chisinau Regional Court refused to hear his former investigator
as a witness after the former gave an interview to a newspaper in which
serious doubt was cast on the applicant’s guilt.”

The judgment contains a new formula, namely:

“The applicant originally complained under
Article 6 § 3 that the Chişinău Regional Court refused to hear his
former investigator as a witness. The Court considered that it was more
appropriate to examine this complaint under Article 5 § 4.”

I am really grateful to my colleagues who have
found it proper, at least in the judgment – unlike the admissibility
decision – to make reference to the original complaint made by the
applicant’s lawyers. Nevertheless, it does not help me solve all my
questions.

It is a well- known fact that the Court is the
master of the characterisation to be given to the law and the facts
adduced before it, but in each and every case – at least to the best
of my knowledge – the Court, in deciding to depart from the characterisation
attributed to the facts by an applicant, has given very convincing legal
reasons.

I regret to say that this was not the case here.
That being so, in the absence of any reasoning to the contrary, I consider
that in this particular

case the point of
departure should have been the complaint made by the applicant’s lawyers.
And this complaint should not have been changed without providing any
plausible legal explanation.

The applicant has never complained about the
impossibility of bringing proceedings concerning the verification of
the lawfulness of his detention. But this issue is the crux of the matter
covered by Article 5 § 4 of the Convention.

Article 5 § 4 provides:

Everybody who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful.

There is no doubt that the Moldavian legislation
on criminal procedure creates all the conditions necessary for the practical
and effective enforcement of this right. Moreover, as is clear from
the description of the facts, the applicant has on different occasions
made use of all the legal provisions stipulated in the Code of Criminal
Procedure, entitling him to have the lawfulness of his detention scrutinised
by the competent judicial authorities.

Coming back to the substance of the applicant’s
allegations, I must confess that I am beset by doubts when I try to
analyse the applicant’s arguments concerning the refusal of the court
to question Colonel C.B. during a routine examination of the applicant’s
request for release. Colonel C.B., a former inspector, alleged in one
of his interviews that the case against Becciev “was fabricated”
and that “the file does not contain and has never contained any evidence
that would prove Becciev’s guilt”.

As I have just mentioned, in his additional
complaint lodged with this Court on 15 May 2003 the applicant argued
that there had been a violation of Mr. Becciev’s rights provided for
in Article 6 § 3 (d) of the Convention, namely, that the court had
refused to summon and hear the witness for the defence who could adduce
arguments allegedly confirming the lack of the applicant’s guilt.

The original complaint poses the question for
me as to whether during a routine procedure verifying the “lawfulness
and necessity” of the prolongation of detention, a court should also
examine the question of “guilt” and call and examine witnesses for
the defence, as the applicant claims. My answer to this question is
no for the following reasons.

The problem of the existence or absence of guilt
cannot be solved in abstracto. To answer the question of an accused’s guilt,
a court should hold a hearing in accordance with the standards of Article
6 of the Convention – and in conformity with the principles of an
adversarial procedure – in order to hear all the witnesses, examine
all material evidence submitted by all the parties, and take all other
procedural measures provided for and guaranteed by law. To determine
the issue of guilt at the stage of a routine control of

lawfulness of detention
by questioning one sole witness is simply impossible.

In other words, solving the problem of “innocence”
is impossible without answering the main, more global question as to
whether an accused is guilty or not of having committed the offences
with which he has been charged.

Examination of the question of “guilt” forms
part of the examination of the merits of the case, and not of the judicial
control of the lawfulness of detention.

If one takes the opposite approach, one should
be conscious of the consequences and provide an answer to the following
question: how many witnesses should it be permissible to examine on
the issue of “guilt” during the stage of a routine judicial control
of the lawfulness of detention? One? Two? Ten? A hundred? And if, as
a result of all these examinations, a judge rules on the issue of “guilt”,
what will be the difference between a “judicial control of the lawfulness
of detention” and an “examination of the merits of the case”?

The answer to this question is, in my view,
self-evident – to allow the hearing of witnesses on the issue of “guilt”
in the course of a judicial control of lawfulness of detention would
run contrary to the proper administration of justice, influence the
further examination of the merits of the case, and, moreover, render
the examination of the merits absolutely meaningless.

On the other hand, the applicant, as is clear
from his additional complaint, has not alleged the impossibility “of
taking proceedings by which the lawfulness of his detention shall be
decided”, but invoked the impossibility of having evidence heard from
a witness who could have cast doubt on the applicant’s guilt.

I hardly think that the impossibility of having
the existence of “guilt” determined can be regarded or treated as
the impossibility “of taking proceedings concerning the lawfulness
of detention”

On the other hand, I agree that the statements
made by Colonel C.B. are extremely serious and deserved special attention
on the part of the applicant’s lawyers. And here again a question
arises. Colonel C.B. cast doubts on the procedure initiating criminal
proceedings against Becciev, declaring that the evidence had been fabricated.

I apologise for saying so, but for this type
of situation there are other proceedings, provided by the Criminal Procedure
Code, namely, reviewing the legality of initiating criminal proceedings.
I am not going to describe here the whole criminal procedure that used
to exist before a new code of criminal procedure entered into force,
and which contained a sufficient range of safeguards and guarantees
against the arbitrary initiation of criminal proceedings. I will concentrate
on just some of those legal provisions, which were open both to the
applicant and his lawyers in the present situation and could have helped
the applicant to have his problem solved if properly applied.

Under Article 98 (1) of the Code of Criminal
Procedure of Moldova the lawfulness of initiating criminal proceedings
is supervised by the prosecutor. If criminal proceedings are initiated
by a criminal investigator or by an investigative body without legal
reasons or grounds, the prosecutor sets aside the decision made by the
criminal investigator or investigative body and refuses to initiate
criminal proceedings or orders the cessation of investigations if some
investigative measures have already been taken.

If an accused does not agree with the decision
made by the prosecutor he is entitled, in accordance with Articles 42,
193, 194 and 195 of the Code of Criminal Procedure, to complain about
this decision to the hierarchically superior prosecutor. All complaints
have to be examined within three days and a reasoned decision must be
sent to the complainant.

Under Article 195-1 and Article 195-2 of the
same Code, if a complaint lodged by an accused with a public prosecutor
has been rejected by the latter, the accused is entitled to challenge
prosecutor’s decision before a court, which in turn is under an obligation
to have this complaint examined within ten days.

If an accused or his representative has information
about criminal acts committed by law-enforcement officers, they must
denounce such acts to the competent authorities, which in turn must
investigate all the allegations.

Let me make the following clear. The Criminal
Code of Moldova provides for criminal responsibility for various unlawful
acts that jeopardise the proper administration of justice, for instance
Article 332 – Forgery of public deeds, Article 327 – Abuse of power
or abuse of office, Article 306 – Malicious prosecution, Article 303
– Interference with the administration of justice and criminal prosecution,
Article 308 – Illegal arrest or detention, etc.

So, in my view, the Moldavian legislator has
created all the necessary possibilities for citizens to have their rights
protected against criminal forms of conducting investigations. Both
Mr. Becciev and his lawyers were free to use the above-mentioned legal
provisions to stop the alleged violation of his rights during initiation
of the proceedings or the continuation of them.

It remains unclear from the case whether the
applicant used the above-described procedure, which was in place at
the material time, and if not, why.

To sum up, I find Article 5 § 4 of the Convention
inapplicable to the present situation for two main reasons:

1. The applicant has never complained about the
impossibility “of taking proceedings by which the lawfulness of his
detention shall be decided”; instead, he complained of the lack of
possibility of having his guiltlessness proved.

2. Determination of “guilt” forms part of
the examination of the merits of the case and not of “the proceedings
by which the lawfulness of his detention shall be decided”.

Therefore, my conclusion is that there has been
no violation of Article 5 § 4 of the Convention in the present case
and this is where I respectfully disagree with the majority.